EFF lawyer warns of e-learning patent dangers

An EFF laywer calls for e-learning company Blackboard to provide official …

A broad e-learning patent held by education and course management software company Blackboard is a growing source of controversy in the education community. The patent, which covers an "Internet-based education support system and methods," could potentially threaten increasingly popular open-source course management platforms like Moodle and subject universities to the risk of litigation. In a recent interview with The Chronicle of Higher Education, Electronic Frontier Foundation (EFF) lawyer Jason Schultz explains the need for patent reform and describes the dangers of broad patents like the one granted to Blackboard.

Although Blackboard has publicly pledged not to enforce its patent against open-source software distributors, universities, or non-commercial entities, there are many gray areas that make it difficult to guess what is permissible and what is not. For instance, Schultz points out that the pledge allows Blackboard to sue proprietary software vendors that incorporate open-source software components into their offerings.

Comparing Blackboard to "a schoolyard bully who holds a huge club over your head and promises not to hit you as long as you don't play with certain other kids on the playground," Schultz believes that Blackboard's pledge is "a nice gesture" but lacks the efficacy and legal significance of an official royalty-free patent license.

In addition to discussing Blackboard's patent, Schultz also discusses recent legal concerns relating to a patent-holding company called Acacia, which owns patents on "the transmission and receipt of digital audio and video content via various means, including the Internet." Acacia routinely attempts to collect licensing fees from universities that use streaming media for distance learning. Schultz says that Acacia's patents "are embroiled in heavy litigation right now with several large cable and satellite providers," and that universities should "certainly think carefully and skeptically before paying money to Acacia these days." Schultz points out that "most of the companies looking to exploit the patent system rely heavily on a lack of resistance from their victims," which certainly explains why Acacia would target universities.

The Chronicle's interview with Schultz reveals some of the detrimental consequences of the patent system and illuminates the need for reform. Initially devised to promote technological progress by subsidizing innovation, the patent system has been derailed by self-interested patent-holding companies that are determined to use intellectual property to coerce quick settlements out of easy targets. The patent office clearly lacks the technical expertise to make accurate determinations regarding the obviousness of inventions, and the end result is a market stifled by opportunistic monopolists to the detriment of innovation.